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1958 Supreme(AP) 26
Andhra Pradesh High Court
Judges : P.CHANDRA REDDY, SRINIVASA CHARI
Mallela Venkata Subbamma - Appellant
Versus
Gogulapati Raja Rathamma - Respondent
Decided On : 01-31-58
The dismissal of a claim petition under Order 21, Rule 63 of the Civil Procedure Code, followed by the dismissal of a subsequent suit to set aside the order, operates as a bar to a subsequent suit for declaration of title to the property in question.
Headnote:
CIVIL PROCEDURE CODE - ORDER 21, RULE 63 - DISMISSAL OF CLAIM PETITION - SUBSEQUENT SUIT FOR DECLARATION OF TITLE - BAR OF RES JUDICATA - EFFECT OF DISMISSAL OF CLAIM PETITION - CONCLUSIVENESS OF ORDER - INVESTIGATION OF TITLE - RELEVANCE OF POSSESSION.
Fact of the Case:
Plaintiff filed a suit for eviction alleging that she was entitled to a vested remainder in certain lands under a gift deed executed by her father. The 1st defendant, her brother, had obtained a collusive decree against their father and attached the properties covered by the gift. Plaintiff's claim petition was disallowed, and her subsequent suit to set aside the order was dismissed. She then filed the present suit for declaration of title.
Finding of the Court:
The court held that the dismissal of the claim petition and the subsequent dismissal of the suit filed thereafter operated as a bar to the present suit. The court found that the plaintiff's right of vested remainder was relevant to the question of possession, and that the investigation of title was necessary to determine whether the property was liable to attachment.
Issues: Whether the dismissal of the claim petition and the subsequent dismissal of the suit filed thereafter operated as a bar to the present suit.
Ratio Decidendi: The court relied on the provisions of Order 21, Rule 63 of the Civil Procedure Code, which states that an order passed on a claim petition shall be conclusive unless the petitioner files a suit within one year to establish the right which he claims. The court also relied on the decision of the Privy Council in Sardharilal v. Ambika Pershad, which held that the effect of a judgment in a suit under Section 283 (now Rule 63) of Order 21 is to settle, as between the attaching-decree-holder and the claimant, the question of title arising in execution.
Final Decision: The court dismissed the appeal, holding that the judgment of the lower court should stand and that the plaintiff's suit was barred by res judicata.
( 2 ) THE property was attached in execution of the decree and the plaintiff herein filed a claim petition on 1-1-1943, Ex. B-12. This claim, petition was disallowed on the ground that she was not in possession. The Munsif rejected the claim petition holding that there was no proof that the property was not liable to be attached. Vide Ex. A-31 dated 5-4-1943.
( 3 ) THEREUPON the plaintiff filed a suit in the Court of the District Munsif, Tenali being O. S. No. 269 of 1943 for setting aside the above order in I. A. No. 49 of 1943 in O. S. No. 207/42. This suit was dismissed with costs on 26-4-1944 the plaintiff being absent. Her advocate appears to have been present. The suit having been dismissed the properties under attachment were brought to sale.
( 4 ) SESHAYYA the father died in July 1946. The 1st defendant and his lessees were in possession of the properties.
( 5 ) THE present suit was filed as against the purchaser at the sale in O. S. No. 207/42 who was said to be the benamidar for the 1st defendant and the 1st defendant, and also the plaintiff in O. Section 207 of 1942, being defendant No. 3 in this suit Various contentions were raised by the contesting defendants, and the formidable objection was that the order in the claim petition acted as a bar to the present suit in view of the fact that the subsequent suit brought by the plaintiff O. S. 269/43 to get the order set aside was also dismissed. The learned Additional Subordinate Judge dismissed the suit. Hence this appeal.
( 6 ) THE short point to be considered in this appeal is as to whether the dismissal of the suit under Order 21, Rule 63, C. P. C. , filed by the plaintiff was not a bar to the presenting of the present claim. It is argued on behalf of the plaintiff that the dismissal of the objection petition and the subsequent dismissal of the suit filed thereafter could not obviously operate as a bar to the present suit for the reason that on the date of those proceedings the plaintiff had no right to the property for what she was entitled to was only a vested remainder. Referring to Order 21, Rule 59, C. P. C. , it was further urged
